Citation Nr: 1042977
Decision Date: 11/16/10 Archive Date: 11/24/10
DOCKET NO. 07-04 542 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New
York
THE ISSUES
1. Entitlement to service connection for residuals of an injury
of the left Achilles tendon.
2. Entitlement to service connection for a left shoulder
disorder.
3. Entitlement to service connection for a disorder of the
cervical spine.
4. Entitlement to service connection for a bilateral knee
disorder.
5. Entitlement to service connection for a disorder manifested
by numbness of the feet.
6. Entitlement to an initial rating for in excess of 10 percent
for spondylolisthesis of L5-S1 with spondylosis of L5.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J Fussell
INTRODUCTION
The Veteran had active service from August 1999 to February 2000
and from October 2001 to March 1, 2005.
This matter comes before the Board of Veterans' Appeals (Board)
from decisions of January and June 2006 of a Department of
Veterans Affairs (VA) Regional Office (RO). The January 2006
rating action granted service connection for spondylolisthesis of
L5-S1 with spondylosis of L5 and assigned an initial
noncompensable disability rating, both effective March 2, 2005
(day after discharge from active service. That decision, and the
June 2006 rating decision, denied service connection for the
other disabilities currently on appeal.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The record reflects that a Statement of the Case (SOC) was issued
as to the claims on appeal in January 2007. In March 2007, the
Veteran submitted additional VA outpatient treatment (VAOPT)
records in support of his claims. This evidence consists of a
March 2007 VAOPT record which references complaints regarding his
neck, back, and pain down his thighs.
The Board finds this evidence pertinent to the Veteran's claims.
Since the Veteran has not waived RO consideration of the evidence
due process requires that the claim be remanded. 38 C.F.R.
§ 20.1304 (2010).
A review of the claim file indicates that the service treatment
records (STRs) of the Veteran's period of service from August
1999 to February 2000 are not on file. The available STRs show
that a December 2004 report of Medical Evaluation Board
Proceedings included a diagnosis of asymptomatic "left
achilles/plantar fascia."
The Veteran was afforded a VA examination in May 2006. The
diagnoses included a history of chronic back pain with a
complaint of radicular pain of the legs, greater in the right
leg, and spasm of the muscles of the left shoulder; a chronic
strain of the knees; a history of left Achilles tendonitis; and
numbness of the feet, probably related to the back but not found
on examination.
The Veteran and his representative argue that the May 2006 VA
examination was inadequate. The Veteran states that the examiner
did not record all relevant information which the Veteran
reported at the time of the examination. As to the severity of
the service-connected lumbosacral disorder, the service
representative argues that the examination was not conducted
during a period of a flare-up or exacerbation of the Veteran's
low back disability, apparently including a period when he had
radicular symptoms, and that the condition has worsened since the
2006 VA examination.
Accordingly, the case is REMANDED for the following action:
1. The appropriate steps should be taken to
obtain and associate with the claim file the
STRs of the Veteran's first period of service
from August 1999 to February 2000.
2. Schedule the Veteran for a VA orthopedic
examination to determine whether the Veteran
now has (1) residuals of an injury of the left
Achilles tendon; (2) a left shoulder disorder;
(3) a disorder of the cervical spine; (4) a
bilateral knee disorder; (5) a disorder
manifested by numbness of the feet; and if he
does the nature and etiology thereof.
Also, the Veteran should be examined to
determine the current extent and severity of
his service-connected lumbosacral disorder.
The Veteran's claims folder should be
available to and reviewed in conjunction with
the examination. All indicated tests, studies
and X-rays should be performed. The report
should set forth all objective findings
regarding the lumbosacral spine, including
complete range of motion measurements.
The examiner is asked to express an opinion as
to whether the Veteran now has (1) residuals
of an injury of the left Achilles tendon; (2)
a left shoulder disorder; (3) a disorder of
the cervical spine; (4) a bilateral knee
disorder; (5) a disorder manifested by
numbness of the feet; and if so whether any
such disorder(s) is at least as likely as not
related to the Veteran's period of service.
Also, the examiner should express an opinion
as to whether the claimed disorders, if they
exist, are at least as likely as not
proximately due to or the result of the
service-connected lumbosacral disorder; this
should include whether the claimed disorders
are aggravated, i.e., increased in severity,
by the service-connected lumbosacral disorder.
As to the severity of the service-connected
lumbosacral disorder, the examiner should
comment on the existence of any functional
loss due to pain, weakened movement, excess
fatigability, incoordination, and painful
motion or pain with use of the lumbosacral
spine. See DeLuca v. Brown, 8 Vet. App. 202
(1995). A complete rationale for any opinion
expressed should be provided.
In formulating the medical opinion, the
examiner is asked to consider that the
term "at least as likely as not" does
not mean "within the realm of
possibility." Rather, it means that the
weight of the medical evidence both for
and against the conclusion is so evenly
divided that it is as medically sound to
find in favor of causation as it is to
find against causation.
If the requested opinions cannot be provided
without resort to speculation, the examiner
should so state and must provide the rationale
therefor.
The Veteran is hereby advised that failure to
report for any scheduled VA examination without
good cause shown may result in the denial of the
original claims for service connection.
3. To help avoid future remand, VA must ensure
that all requested action has been accomplished
(to the extent possible) in compliance with this
REMAND. If any action is not undertaken, or is
taken in a deficient manner, then appropriate
corrective action should be undertaken. See
Stegall v. West, 11 Vet. App. 268 (1998).
3. Then readjudicate the claims in light of
the additional evidence obtained. If the
benefits sought are not granted to the
Veteran's satisfaction, send him and his
representative a Supplemental SOC (SSOC) and
give them time to respond to it before
returning the case to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).